may turn up peats, turfs, feals, or divots, from the ground of the fervient, and carry them off either for fuel, or thatch, or the other ufes of his own tenement. 12. THIRLAGE is that fervitude, by which lands are aftricted, or thirled, to a particular mill; and the poffeffors bound to grind their grain there, for payment of certain multures and fequels as the agreed price of grinding. In this fervitude, the mill is the dominant tenement, and the lands af tricted (which are called alfo the thirl or fucken) the fervient. 13. MULTURE is the quantity of grain or meal payable to the proprietor of the mill, or to the multurer his tackfman. The quantities paid to the mill by the lands not aftricted, are generally proportioned to the value of the labour, and are called out-town or out-fucken multures; but those paid by the thirl are ordinarily higher, and are called in-town, or in-fucken multures. 14. The SEQUELS are the small quantities given to the fervants, under the name of knaveship, bannock, and lock or gopen. 15. Thirlage is either, 1. Of grindable corns; or, 2. Of all growing corns; or, 3. Of the invecta et illata, i. c. of all the grain brought within the thirl, though of another growth. Where the thirlage is of grindable grain, it is in practice reftricted to the corns which the tenants have occafion to grind, either for the support of their families, or for other ufes; the furplus may be carried out of the thirl unmanufactured, without being liable in multure. Where it is of the grana crefcentia, the whole grain growing upon the thirl is aftricted, with the exceptions, 1. Of feed and horse corn, which are deftined to ufes inconfiftent with grind ing; and, 2. Of the farm duties due to the land. lord, if they are delivered in grain not grinded. But, if the rent be payable in meal, flour, or malt, the grain of which these are made, must be manu factured in the dominant mill. 16. The thirlage of inveda et illata is feldom constituted but against the inhabitants of a borough or village, that they fhall grind all the unmanufactured grain they import thither at the dominant mill. Multure, therefore, cannot be exacted in a thirlage of inveda et illata, for flour or oat-meal brought into the fervient tenement, unless the importer had bought it in grain, and grinded it at another mill. The fame grain that owes multure, as granum crefcens, to the mill in whofe thirl it grew, if it fhall be afterwards brought within a borough where the invecta et illata are thirled, must pay a fecond multure to the proprietor of that dominant tenement; but where the right of thefe two thirlages is in the fame proprietor, he cannot exact both. Where lands are thirled in general terms, without expreffing the particular nature of the fervitude, the lightest thirlage is prefumed, from the favour of liberty; but in the aftriction of a borough or village, where there is no growing grain which can be the fubject of thirlage, the aftriction of invecta et illata must be neceffarily understood. 17. Thirlage, in the general cafe, cannot be eftablished by prefcription alone, for iis quæ funt mera facultatis non prafcribitur; for where one has paid for 40 years together the heavy infucken mul tures, the slightest title in writing will subject his lands. Thirlage may, contrary to the common rule, be conftituted by prescription alone, 1. Where one pays to a mill a certain fum, or quantity of grain yearly, in the name of multure, whether he grinds it at it or not, called dry multure. 2. In mills of the king's property; which is constituted jure corona, without titles in writing; and where he derives right from another, his titles are more liable to be loft. This is extended, in practice, to mills belonging to church lands, where 30 years poffeffion is deemed equivalent to a title in writing, from a prefumption that their rights were deftroyed at the reformation. Though thirlage itself cannot be conftituted by mere poffeffion, the proportion of multure payable to the dominant tenement may be so fixed. 18. The poffeffors of the lands aftricted are bound to uphold the mill, repair the dam-dykes and aqueducts, and bring home the millstones, Thefe fervices, though not expreffed in the conftitution, are implied. By act of parliament passed in 1799, the right of thirlage may be commuted into a fixed or annual payment in money, at the inftance either of the proprietor of the mills or thirled lands. 19. Servitudes, being restraints upon property, are frici juris: They are not therefore presumed, if the acts upon which they are claimed can be explained confiftently with freedom; and when fervitudes are conftituted, they ought to be used in the way leaft burdenfome to the fervient tenement. Hence, one who has a fervitude of peats upon his neighbour's mofs, is not at liberty to extend it for the use of any manufacture which may require an extraordinary expenfe of fuel; but muft confine it to the natural uses of the dominant tenement. 20. Servitudes are extinguished, 1. Confufione, when the perfon comes to be proprietor of the dominant and fervient tenements; for res fua nemini fervit, and the ufe the proprietor thereafter makes of the fervient tenement is not jure fervitutis, but is an act of property. 2. By the perishing either of the dominant or fervient tenement. 3. Servitudes are loft non utendő, by the dominant tenement neglecting to use the right for 40 years; which is confidered as a dereliction of it, though he who has the fervient tenement should have made no interruption by doing acts contrary to the fervitude. 21. Perfonal fervitudes are those by which the property of a fubject is burdened, in favour, not of a tenement, but of a perfon. The only perfonal fervitude known in our law, is ufufruct or liferent; which is a right to use and enjoy a thing during life, the fubftance of it being preferved. A liferent cannot therefore be constituted upon things which perish in the ufe; and though it may upon fubjects which gradually wear out by time, as household furniture, &c. yet with us it is generally applied to heritable fubjects. He whose property is burdened, is usually called the far. 22. LIFERENTS are divided into conventional and legal. Conventional liferents are either fimple, or by refervation. A simple liferent, or by a fepa rate conftitution, is that which is granted by the proprietor in favour of another: And this fort, contrary contrary to the nature of predial fervitudes, requires feifin in order to affect fingular fucceffors; for a liferent of lands is, in ftrict speech, not a fervi. tude, but a right refembling property which conftitutes the liferenter vaffal for life; and fingular fucceffors have no way of difcovering a liferent right, which perhaps is not yet commenced, but by the records; whereas, in predial fervitudes, the conftant use of the dominant tenement makes them public. The proper right of liferent is in tranfmiffible: offibus ufufructuarii inhæret: When the profits of the liferented subject are tranfmitted to another, the right becomes merely perfonal; for it entitles the affignee to the rent, not during his own life, but his cedent's; and is therefore carried by fimple affignation, without feifin. 33. A lifetent by refervation is that which a proprietor referves to himself in the fame writing by which he conveys the fee to another. It requires no feifin; for the granter's former feifin, which virtually included the liferent, ftill fubfifts as to the liferent which is exprefsly referved. In conjunct infeftments taken to hufband and wife, the wife's right of conjunct fee refolves, in the general cafe, into a liferent. 24. Liferents, by law, are the terce and the courtesy. The terce (tertia) is a liferent compe tent by law to widows, who have not accepted of fpecial provifions, in the third of the heritable fubjects in which their husbands died infeft; and takes place only where the marriage has fubfifted for year and day, or where a child has been born alive of it. 25. The TERCE is not limited to lands, but extends to teinds, and to fervitudes and other burdens affecting lands; thus, the widow is entitled, in the right of her terce, to a liferent of the third of the fums fecured, either by rights of annual rent or by rights in fecurity. In improper wadfets, the terce is a third of the fum lent: In thofe that are proper, it is a third of the wadfet lands; or, in cafe of redemption, a third of the redemp. tion money. Neither rights of reverfion, fuperiority, nor patronage, fall under the terce; for none of these have fixed profits, and fo are not proper subjects for the widow's subsistence; nor tacks, because they are not feudal rights. Burgage tenements are also excluded from it, the reafon of which is not fo obvious. Since the huf band's feifin is both the measure and fecurity of the terce, fuch debts or diligences alone, as exclude the husband's feifin, can prevail over it. 26. Where a terce is due out of lands burdened with a prior terce ftill fubfifting, the 2d tercer has only right to a third of the two thirds that remain unaffected by the firft terce. But upon the death of the firft widow, whereby the lands are difburdened of her terce, the leffer terce becomes enlarged, as if the firft had never exifted. A widow who has accepted of a special provifion from her hushand, is thereby excluded from the terce, unless fuch provifion fhall contain a clause that she shall have right to both. 27. The widow has no title of poffeffion, and fo cannot receive the rents in virtue of her terce, fill the be fervéd to it; and in order to this, fhe must obtain a brief out of the chancery, directed to the theriff, who calls an inquest to take proof that fhe was wife to the deceafed, and that her husband died infeft in the subjects contained in the brief. 28. COURTESY is a liferent given by law, to the furviving husband, of all his wife's heritage in which the died infeft, if there was a child of the marriage born alive. A marriage, though of the longest continuance, gives no right to the courtefy, if there was no iffue of it. The child born of the marriage muft be the mother's heir: If the had a child of the former marriage, who is to fucceed to her eftate, the hufband has no right to the courtefy while fuch child is alive; fo that the courtesy is due to the husband, rather as father to an heir, than as husband to an heiress. Heri tage is here opposed to conqueft; and fo is to be understood only of the heritable rights to which the wife fucceeded as heir to her ancestors, excluding what the herself had acquired by fingular titles. 29. Because the hufband enjoys the liferent of his wife's whole heritage, on a lucrative title, he is confidered as her temporary reprefentative; and fo is liable in payment of all the yearly burdens chargeable on the fubject, and of the current intereft of all her debts, real and perfonal, to the value of the yearly rent he enjoys by the courtesy. The courtesy needs no folemnity in its conftitu tion: That right which the hufband had to the rents of his wife's eftate during the marriage, jure mariti, is continued with him after her death, under the name of courtesy, by an act of the law itself. As in the terce, the hufband's feihin is the ground and measure of the wife's right; fo in the courtesy, the wife's feifin is the foundation of the husband's; and the two rights are, in all other refpects, of the fame nature; if it is not that the courtesy extends to burgage holdings, and to fuperiorities. 30. All liferenters must use their right falva rei fubftantia: Whatever therefore is part of the fee itself, cannot be encroached on by the liferenter, e. g. woods or growing timber, even for the neceffary uses of the liferented tenement. But, where a coppice or filva cadua has been divided into hags, one of which was in use to be cut annually by the proprietor, the liferenter may continue the former yearly cuttings; because these are confidered as the annual fruits the fubject was intended to yield, and fo the proper fubject of a liferent. 31. Liferenters are bound to keep the fubje&t liferented in proper repair. They are alfo burdened with the alimony of the heir, where be has not enough for maintaining himself. The bare right of apparency founds the action against the liferenter. It is a burden perfonal to the literenter himfelf, and cannot be thrown upon his adjudging creditors, as coming in his place by their diligences. Liferenters are alfo fubjected to the payment of the yearly celles, ftipends, &c. falling due during their right, and to all other burdens that attend the subject liferented. 32. Liferent is extinguished by the liferenter's death. That part of the rents which the liferenter had a proper right to, before his death, falls to his executors; the reft, as never having been in bonis of the deceafed, goes to the fiar. Mar tinmas tinmas and Whitfunday are, by our custom, the legal terms of the payment of rent; confequently, if a liferenter of lands furvives the term of Whitfunday, his executors are entitled to the half of that year's rent, because it was due the term before his death; and if he furvives the term of Martinmas, they have right to the whole. If the liferenter, being in the natural poffeffion, and having first fowed the ground, fhould die, even be fore Whitfunday, his executors are entitled to the whole crop, in refpect that both feed and industry were his. In a liferent of money conftituted by a moveable bond, the executors have a right to the intereft, down to the very day of the liferenter's death; where no terms are mentioned for the payment thereof; but in the cafe of an heri table bond, or of a money liferent fecured on land, the interefts of liferenter and fiar (or of heir and executor, for the fame rules, ferve to fix the interefts of both) are both governed by the legal terms of land-rent, without regard to the conventional. SECT. X. OFTEINDS. I. TEINDS, or tithes, are that proportion of our rents or goods which is due to churchmen, for performing divine fervice, or exercifing the other fpiritual functions proper to their feveral offices. Moft of the canonifts affirm, that the precife proportion of a tenth, not only of the fruits of the ground, but of what is acquired by perfonal industry, is due to the Chriftian clergy, of divine right, which they therefore call the proper patrimony of the church; though it is certain that tithes, in their infancy, were given, not to the clergy alone, but to lay-monks who were called pauperes, and to other indigent perfons. Charles the Great was the firft fecular prince who acknowledged this right in the church. It appears to have been received with us as far back as David I. 5. In confequence of the extenfive grants by James VI, to titulars, the teinds of the greatest part of all the lands of the kingdom became the private property of laymen, who continued the ufe of drawing the ipfa corpora of the fruits and goods, which produced much oppreffion and complaint. Whereupon Charles I. attempted a reduction of the grants of erection by James, and the matter was at laft fubmitted to himself-By I. The titulars. 2. The clergy. 3. The royal burghs for the teinds gifted to them for hofpitals, and, 4. The proprietors of the lands fuffering the drawing of teinds. 6. The king, on the 2d September 1629, ordain ed, 1. That the proprietors might fue the titu lars for a valuation and sale of their teinds before the commiffion. 2. Where the teinds were not drawn, he fixed them at a fifth of the yearly rent, and the price was 9 years purchase of this. 3. Where the teinds were drawn, the ipfa corpora were to be valued on a proof before the commiffioners; and the amount of them in money, deducting one fifth (as king's ease), was the full teind -duty, which might also be acquired at 9 years purchase. A commiffion was appointed, for that effect by ftatute 1633, now vefted in the lords of feffion by the union in 1707. 7. ORDER of VALUATION. 1. The mortified teinds might be valued, but not sold. 2. The bifhops teinds falling to the crown were, by act 1693, declared not judicially faleable, while they remained with the crown. Nor, 3. Those teinds which an heritor, in a difpofition or fale of his lands had exprefsly reserved; but both might be valued. 8. The fuperiorities of erection were declared to revert to the crown. Lands cum decimis inclufis are not fubject to teinds, being prefumed to have been ancient grants made by the church of lands or teinds in their poffeffion previous to the refor mation. 2. After the reformation in 1560, K. James 9. The valuation made by fub-commiffioners, VI. feized upon the lands belonging to monaf in confequence of the commiffion in 1633, were teries, abbeys, and other religious houfes. He many of them carried off by Cromwell or burnt made grants of thefe poffeflions to his laic fub in 1700. Where they are found, the commiffion jects, upon condition of their providing the diffe- ftill approves, unless departed from; but where a rent cures with minifters, and allowing them ade- valuation is once approved of by the high-comquate ftipends out of the revenues arifing from thefe miffion, even although there fhould be an over grants. Thefe became at laft heritable, and con payment, the valuation would ftand good, so as ferred not only a right to special lands, but to the to exclude a new one, and prevent an augmentateinds of the whole lands within the beneficiary, tion. Where laymen are the patrons or titulars, as in loco of the church. The grantees were fty- a valuation and fale is competent as above. led Lords of Erection, Commendators, Titulars. 3. By act 1587, all church lands, property and fuperiority, were annexed to the crown, and the teinds of courfe; excepting, 1. The poffeffions in land of the prefent clergy, which remained with them during their lives; 2. The teinds drawn by the bishop and inferior clergy, with their manfes and glebes, which were referved for their fucceffors; 3. The fee or teinds of lands mortified to universities, hofpitals, and other charitable pur pofes; 4. The teinds of benefices founded or endowed by lay patrons, which were allowed to remain with the patrons. 4. The crown, by the final abolition of epifcopacy, in 1690, is now in the right of the teinds and fuperiorities of bifhops lands. 10. Teinds remaining with beneficiaries were, by 1693, made redeemable by patrons, for payment of a fuitable ftipend to the incumbents: and these the patron muft fell at 6 years purchase. Teinds in the hands of the crown, in place of the bishops, are generally fet in leafe for payment of a compofition, but feldom difponed. Mortified teinds may be difponed as above. It. In valuation of teinds, the fruits and goods, as corns and grafs, which are liable in teind, are only included. Hence houfes, wood, &c. are excepted. Where parfonage and vicarage fithes belong to different heritors, the value of the vicarage is deduced from the 5th of the rental, or the amount of the parfonage teind. 22. Munters or ftipendiaries are, in the first place, place, to be fupported from the teinds, which are of 4 claffes: viz. 1. Such as are in the hands of the crown, never difponed or erected. 2. Such as are in the hands of laymen. 3. Such as are in leafe from the crown, titulars, or patrons. 4. Thofe heritably difponed by the titulars. The two firft are called free teind, and are modified, primo loco to their real extent or tack-duty paid, and then the furplus teind of the tackfman (after paying the tack-duty which was previously allocated), in confideration of which the commiffioners grant him a prorogation. And laftly, the teinds heritably difponed are burdened in proportion with the patron's own lands, when all the free and furplus tack teinds are exhaufted. If the titular warranted against future augmentations, he is liable folely. 13. The patron may modify upon any one heritor to the extent of his teinds, until citation in an action of valuation: And the minister may fue any one heritor to the like extent upon a modification of ftipend. But a locality prevents this., 14. The commiffion, with confent of two thirds of the valuation, may remove or erect churches. Horning is obtained upon decrees of the prefbytery for realifing the legal provisions of minifters, of manfes, glebes, ftipends, &c. 15. ORDER of ALLOCATION of STIPENDS from the TEIND. I. Thofe never erected. 2. Those erected, yet poffeffed by a lay titular or patron. N. B. Thefe two are called free teinds. 3 Thofe let in leafe by the titular, i. e. as to the furplus tack-duty. 4. Those heritably difponed by him; and the teinds of his own lands in proportion. SECT. XI. Of INHIBITIONS. 1. THE Conftitution and tranfmiffion of feudal rights, and the burdens with which they are chargeable, being now explained, it remains to be confidered how thofe rights may be affected, at the fuit of creditors by legal diligence. Diligences are forms of law, whereby a creditor endeavours to make good his payment, either by affecting the perfon of his debtor, or by fecuring the fubjects belonging to him from alienation, or by carrying the property of these subjects to himself. They are either real or perfonal. Real diligence is that which is proper to heritable or real rights; perfonal is that by which the perfon of the debtor may be fecured, or his perfonal eftate affected. Of the first fort we have two, viz. inhibition and adjudication. 2. INHIBITION is a personal prohibition, which paffes by letters under the fignet, prohibiting the party inhibited to contract any debt, or do any deed, by which any part of his lands may be aliened or carried off in prejudice of the creditor in hibiting. It muft be, executed against the debtor perfonally, or at his dwelling-houfe, as fummonfes, and thereafter published and registered. SECT. XII. Of COMPRISINGS, ADJUDICATIONS, and JUDICIAL SALES. 1. HERITABLE rights may be carried from the debtor to the creditor, either by the diligence of apprifing (now adjudication), or by a judicial fale carried on before the court of feffion. Apprifing er comprising was the fentence of a fheriff, or of VOL. XIII. PArt I. a messenger, who was fpecially conftituted sheriff for that purpose, by which the heritable rights belonging to the debtor were fold for payment of the debt due to the apprifer; so that apprifings were, by their original conftitution, proper fales of the debtor's lands to any purchafer who of fered. If no purchaser could be found, the sheriff was to apprife or tax the value of the lands by an inqueft (whence came the name of apprifing), and to make oyer to the creditor lands to the value of the debt. A full hiftory of apprifings may be found in the beginning of Mr Erfkine's large Initi tute under this title; but it is now quite unneceffary to enter farther upon the fubject here, as by the act 1672 adjudications were substituted in their place. 2. ADJUDICATIONS are carried on by way of action before the court of feffion. By act 1672, c. 19, fuch part of the debtor's lands is to be adjudged, as is equivalent to the principal fun and intereft of the debt, with the compofition due to the fuperior and expenfes of infettment, and a 5th part more, in refpect the creditor is obliged to take land for his money. The debtor muft deliver to the creditor a valid right of the lands to be adjudged, or tranfcripts thereof, renounce the poffeffion in his favour, and ratify the decree of adjudication; and law confiders the rent of the lands as precifely commenfurated to the intereft of the debt; fo that the adjudger lies under no obligation to account for the furplus rents. In this, which is called a special adjudication, the legal time, or that within which the debtor may redeem, is declared to be five years; and the cre ditor attaining poffeffion upon it can use no farther execution against the debtor, unless the lands be evicted from him. 3. Where the debtor does not produce a fuffi. cient right to the lands, or is not willing to re nounce the poffeffion, and ratify the decree (which is the cafe that has moft frequently happened), the ftatute makes it lawful for the creditor to adjudge all right belonging to the debtor in the fame man ner, and under the fame reverfion of ten years, as he could, by the former laws, have apprifed it. In this last kind, which is called a general adjudication, the creditor muft limit his claim to the principal fum, intereft, and penaky, without demanding a fifth part more. But no general adjudication can be infifted on, without libelling in the fummons the other alternative of a fpecial adjudication; for fpecial adjudications are introduced by the ftatute in the place of apprifings; and it is only where the debtor refufes to comply with the terms thereof, that the creditor can lead a general adjudication. 4. Abbreviates are ordained to be made of all adjudications, which must be recorded within 60 days after the date of the decree. In every other refpect, general adjudications have the fame effects that apprifings had; adjudgers in poffeffion are accountable for the furplus rents; citation in adjudications renders the subject litigious; fuperiors are obliged to enter adjudgers; the legal of adjudications does not expire during the debtor's minority, &c. Only it may be observed, that though apprifings could not proceed before the term of payment, yet where the debtor is vergens adinopiam, the court, ex nobili officio, may admit adju E dication VIII. § 15.); nor does it take place in adjudica tions in implement. dication for the debt before it be payable. But this fort being founded folely in equity, fubfifts merely as a fecurity, and cannot carry the property to the creditor by the lapfe of any length of time. 5. There are two kinds of adjudication, which took place at the fame time with apprifing, and ftill obtain; viz. adjudications on a decree cognitionis caufa, otherwife called contra hæreditatem jacentem; and adjudications in implement. Where the debtor's apparent heir, who is charged to enter, formally renounces the fucceffion, the credifor may obtain a decree cognitionis caufa; in which, though the heir renouncing is cited for the fake of form, no fentence condemnatory can be pronounced against him, in respect of his renunciation; the only effect of it is to fubje&t the hæreditas jacens to the creditor's diligence. 6. Adjudications contra hæreditatem jacentem carry not only the lands themselves that belonged to the deceased, but the rents therefor fallen due fince his death; for thefe, as an acceffory to the eftate belonging to the deceased, would have defcended to the heir if he had entered, which rule is applied to all adjudications led on a fpecial charge. This fort of adjudication is declared redeemable within 7 years by any co-adjudging creditor, either of the deceased debtor, or of the heir repouncing. The heir himself who renounces cannot be restored against his renunciation, nor confequently redeem, if he be not a minor. But even a major may redeem indirectly, by granting a fimulate bond to a confident perfon; the adjudication upon which, when conveyed to himfelf, is a good title to redeem all other adjudications against the lands belonging to his ancestor. 7. Adjudications in implement are declared against those who have granted deeds without procuratory of refignation, or precept of feifin, and refufe to diveft themfelves; to the end that the fubject conveyed may be effectually vefted in the grantee. Thefe adjudications may be alfo directed against the heir of the granter, upon a charge to enter. Here there is no place for a legal rever. fion; for, as the adjudication is led for completing the right of a fpecial fubject, it must carry that fubject as irredeemably as if the right had been voluntarily completed. 8. All adjudications led within year and day of that which has been made first effectual by seifin (where feifin is neceffary), or exact diligence for obtaining feifin, are preferable pari palu. The year and day runs from the date of the adjudication, and not of the feifin or diligence for obtaining it. After the days of that period, they are preferable according to their dates. All the coadjudgers within the year are preferable pari paffu, as if one adjudication had been led for all their debts. This makes the feifin or diligence on the firft adjudication a common right to the reft, who muft therefore refund to the owner of the diligence his whole expenfe laid out in carrying on and completing it. And though that firft adjudication fhould be redeemed, the diligence upon it ftill fubfifts as to the reft. This pari paffu prefer ence, however, does not deftroy the legal preference of adjudications led on debita fundi (fee SECT. 9. A new fort of adjudication was introduced into the law of Scotland by the act of 33 Geo. III. cap. 74, for rendering the payment of the creditors of infolvent debtors more equal and expe ditious; and renewed from time to time by sublequent ftatutes. 10. Before treating of judicial fales of bank. rupts eftates, the nature of SEQUESTRATION may be fhortly explained, which is a diligence that generally ufhers in actions of fale. Sequeftration of lands is a judicial act of the court of feffion, where. by the management of an eftate is put into the hands of a factor or fteward named by the court, who gives fecurity, and is to be accountable for the rents to all having intereft. This diligence is competent, either where the right of the lands is doubtful, if it be applied for before either of the competitors has attained poffeffion, or where the eftate is heavily charged with debts; but, as it is an unfavourable diligence, it is not admitted, unlefs that measure fhall appear neceffary for the fecurity of creditors. Subjects not brought before the court by the diligence of creditors, cannot fall under fequeftration; for it is the competition of creditors, which alone founds the jurifdiction of the court to take the disputed fubject into their poffèffion. 11. The court of feffion, who decree the fequeftration, have the nomination of the factor, in which they are directed by the recommendation of the creditors. A factor appointed by the feffion, though the proprietor had not been infeft in the lands, has a power to remove tenants. Judicial factors muft, within fix months after extracting their factory, make up a rental of the eftate, and a lift of the arrears due by tenants, to be put into the hands of the clerk of the process, as a charge against themselves, and a note of fuch alterations in the rental as may afterwards happen; and must alfo deliver to the clerk annually a scheme of their accounts, charge and difcharge, under heavy pe nalties. They are, by the nature of their office, bound to the fame degree of diligence that a prudent man adhibits in his own affairs; they are accountable for the intereft of the rents, which they either have, or by diligence might have recovered, from a year after their falling due. As it is much in the power of those factors to take advantage of the neceffities of creditors, by purchafing their debts at an under value, all fuch purchases made either by the factor himself, or to his behoof, are declared equivalent to an acquittance or extinction of the debt. No factor can warrantably pay to any creditor, without an order of the court of feffion; for he is, by the tenor of his commiffion, directed to pay the rents to those who shall be found to have the best right to them. Judicial factors are entitled to a falary, which is generally ftated at 5 per cent. of their intromiffions; but it is feldom afcertained till their office expires, or till their accounting; that the court may modify a greater or fmaller falary, or none, in proportion to the factor's integrity and diligence. Many cafes occur, where the court of feffion, without fequeftration, namè a "factor to preserve the rents from |